CLA-2 CO:R:C:M 088645 NLP
District Director
U.S. Customs Service
US Customhouse
1 East Bay Street
Savannah, GA 31401
RE: Protest No. 1704-90-000207; facing material applied to a
gasket; cellulosic fibers; mineral substances; Heading
4805; Heading 6815; GRI 3(b); composite good; essential
character; HRL 076899
Dear District Director:
The following is our decision regarding the Protest and
Request for Further Review No. 1704-90-000207, dated September
26, 1990. At issue is the classification of "Novaplan", a non-
asbestos gasket material, under the Harmonized Tariff Schedule of
the United States (HTSUS).
FACTS:
Novaplan is a non-asbestos product which can be used for a
variety of applications. However, the protestant uses it as a
facing applied to both sides of automotive engine head-gasket
core material. Novaplan serves as a carrier for bonding material
that is applied to enhance the seal of an engine block to the
engine head.
According to the importer, the first step in the manufacture
of Novaplan is the preparation of a pulp, which is made by
blending the different components and diluting them in water to
enable the pulp to be run on a paper machine. The components
used are predominantly cellulose, latex, inorganic fillers and
aramid fibers. The diluted pulp is piped via a slurry on to the
wires in a Fourdrinier paper-making machine which move forward
with a slight vibratory movement causing the water in the pulp to
be shaken clear. The pulp, having lost most of its water, has
now become felted and relatively smooth. It is then passed on to
an endless belt of felt and from there to a press, where further
amounts of water are squeezed from the material. It is then
transported through a drying tunnel and rolled on to a large
spindle. The rolls are cut to the desired width needed by the
purchaser.
According to Customs laboratory report No. 4-90-10092-001,
dated December 12, 1989, based on laboratory analysis and
information supplied by the manufacturer, the components of
Novaplan are as follows:
COMPONENT WEIGHT
Silicic acid 43 %
Mineral wool 29 %
Aramid fibers 10 %
Cellulosic fibers 7 %
Acrylonitrile-Butadiene
Rubber 7 %
Organic binders 4 %
Upon importation, your office liquidated Novaplan in
subheading 6815.99.40, HTSUS, which provides for articles of
stone or of other mineral substances (including articles of
peat), not elsewhere specified or included, other articles,
other, other.
Counsel for the importer contends that the essential
character of Novaplan makes it properly classifiable as paper in
subheading 4805.70.40, HTSUS, which provides for other paper and
paperboard, weighing more than 150 g/per square meter but less
than 225 g/per square meter other, other.
ISSUE:
Is Novaplan classified as other paper and paperboard in
subheading 4805.70.40, HTSUS, or as other mineral substances of
subheading 6815.99.40, HTSUS.
LAW AND ANALYSIS:
Counsel for the importer argues that the cellulosic fibers
impart the essential character to Novaplan because Novaplan's
production is the same as paper production and its uses are akin
to the uses of paper. Also, the fact that the cellulosic fibers
only comprise 7% of the weight of Novaplan should not negate it
as comprising Novaplan's essential character. Furthermore,
according to the manufacturer, 88.58% of Novaplan's surface is
cellulosic fibers, while the aramid fibers account for 5.64%, the
mineral fibers only .14% and the fillers account for 5.64%.
Additionally, in a meeting with counsel and representatives of
the importer and the manufacturer, counsel stated that the
cellulosic fibers represent 60 times as much volume as the
mineral fibers. Finally, counsel argues that without the
cellulosic fibers, Novaplan could not contain enough mineral
fibers and filler within its pores to be heat resistant, nor
would it be pliable enough to form a seal as part of a gasket.
The classification of goods under the HTSUS is governed by
the General Rules of Interpretation (GRI's), taken in order. GRI
1 provides that classification shall be determined according to
the terms of the headings and any relative section or chapter
notes. In the event that the goods cannot be classified solely
on the basis of GRI 1, and if the headings and legal notes do not
otherwise require, the remaining GRI's may be applied, taken in
order.
Heading 4805, HTSUS, provides for other uncoated paper and
paperboard, in rolls or sheets. The General Explanatory Notes to
Chapter 48 of the Harmonized Commodity Description and Coding
System (HCDCS), page 664, state that paper consists essentially
of cellulosic fibers of the pulps of Chapter 47 felted together
in sheet form. Therefore, to be considered paper Novaplan must
be one of the pulps described in Chapter 47, HTSUS, and consist
essentially of cellulose fibers.
Chapter 47, HTSUS, provides for pulp of wood or of other
fibrous cellulosic material; waste and scrap of paper or
paperboard. The HCDCS General Explanatory Notes to Section X,
Chapter 47, page 655, state in pertinent part that "[t]he pulp of
this Chapter consists essentially of cellulose fibers obtained
from various vegetable materials, or from waste textiles of
vegetable origin." These Notes also state that other materials
used for making pulp include the following: cotton linters, rags
(particularly cotton, linen or hemp) and other textile wastes
such as old ropes, straw, esparto, flax, ramie, jute, hemp,
sisal, bamboo and various other grasses and reeds.
It is our position that the pulp from which Novaplan is made
does not consist essentially of cellulosic fibers based on the
low percentage (7%) of cellulosic fibers present in Novaplan.
Moreover, in examining the headings of Chapter 47, HTSUS, we find
that the pulp of Novaplan is not described therein. The HCDCS
Explanatory Notes to Chapter 47, page 656-688, describe 4 basic
types of pulps: mechanical wood pulp, chemical wood pulp, semi-
chemical wood pulp and pulps of other fibrous cellulosic
material. An examination of these Notes makes it clear that
Novaplan is not included within any of these descriptions. Nor
can Novaplan be said to be a pulp of other cellulosic fibers as
it is not made essentially of any "[o]ther materials used for
making pulp" listed in the HCDCS General Explanatory Notes to
Chapter 47 on page 655. Thus, Novaplan cannot be classified in
Heading 4805, HTSUS.
Moreover, the fact that Novaplan is made like paper and is
used in areas that paper is used in, while informative, is not
dispositive. See, HRL 076899, dated February 24, 1986. We do not
believe that a product which is over 90% by weight of materials
other than cellulosic fibers can be said to be essentially of
such fibers. As a result, Novaplan does not satisfy the terms of
Heading 4805, HTSUS. Accordingly, based on GRI 1, it is not
properly classified within this heading and we find no other
heading of the nomenclature eligible for GRI 1 classification.
GRI 2(b) states that any reference in a heading to a
material or substance shall be taken to include a reference to
mixtures or combinations of that material or substance with other
materials or substances. Any reference to goods of a given
material or substance shall be taken to include a reference to
goods consisting wholly or partly of such materials or substance.
The classification of goods consisting of more than one material
or substance shall be according to the principles of GRI 3.
Novaplan is a composite good; that is, it is composed of two
or more constituent ingredients which combine to produce the
whole. As Novaplan cannot be classified according to GRI 1 or
GRI 2(b), the GRI's dictate that classification of a product such
as this one is made by determining which of the constituent
materials provides the essential character of the item. GRI 3(b)
states the following:
When by application of Rule 2(b) or for any other
reason, goods are, prima facie, classifiable under two
or more headings, classification shall be affected as
follows:
(b) Mixtures, composite goods consisting of different
materials or made up of different components, and
goods put up in sets for retail sale, which cannot
be classified by reference to 3(a), shall be
classified as if they consisted of the material or
component which gives them their essential character,
insofar as this criterion is applicable.
HCDCS Explanatory Note VIII to GRI 3(b), page 4, states
that:
The factor which determines essential character will
vary as between different kinds of goods. It may, for
example, be determined by the nature of the material or
component, its bulk, quantity, weight or value, or by
the role of a constituent material in relation to the
use of the goods.
Among the components of Novaplan other than the cellulose
fibers, the mineral wool is the predominant material. Although
both the aramid fibers and the mineral wool provide strength and
temperature resistance, we find that because the mineral wool
predominates by weight over the rest of the components it
represents the essential character of the Novaplan. Therefore,
the Novaplan is classified in subheading 6815.99.40, HTSUS.
HOLDING:
The protest should be denied in full. A copy of this
decision should be attached to the Customs Form 19 and provided
to the protestant as part of the notice of action on the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division